August 4, 2010

The Nevada Supreme Court ruled last week that a provision in the state ethics laws is unconstitutionally broad and infringes upon the First Amendment rights of free speech for public officials.

The ruling was made after Sparks City Councilman Michael Carrigan challenged his censure by the State Ethics Commission that followed his vote on a matter involving a company his friend and campaign manager worked for.

According to Nevada's "Ethics in Government" laws, if a public official is engaged in one of four specifically prohibited relationships, they must abstain from voting. These include common sense things such as a public official can't vote for matters involving a family member. Additionally, there is a fifth provision that includes anything "substantially similar" to the four specific relationships but still not explicitly listed. Carrigan was censured under this fifth "catchall" provision.

Carrigan argued the act of voting by a public official is an expression of free speech. Because it is free speech, any attempts by the government to limit it must be "narrowly tailored to meet a compelling government interest."

The Court agreed and ruled in favor of Carrigan. Because votes made by public officials are expressions of free speech, the government has the burden to prove any limitations on that speech are narrowly tailored and serve a compelling government interest. So while the Court agreed with the State Ethics Commission that having an honest state government is a compelling government interest, the Court found the language to accomplish that goal was not "narrowly tailored." The catchall provision, in the eyes of the Court, is too broad and hence infringes upon the free speech rights of public officials by restricting their ability to vote on matters.

So what does this all mean? The obvious is that the State Ethics Commission will no longer be able to rely upon the catchall provision in issuing censures in the future. It might have the effect, as Jon Ralston argued Monday, of further de-fanging an already toothless Ethics Commission.

It'd be nice to think that public officials won't use weaker ethics laws to skirt conflict of interest rules, but I'm not holding my breath.